One subject that drew a lot of attention from Birch Bayh’s Senate Subcommittee was Miranda. Blockbuster hearings were held in 1966 that included testimony by Arlen Specter (then a young prosecutor in Philadelphia fresh off serving on the Warren Commission) and Truman Capote. Why Truman Capote? He was a celebrity, and that was sometimes a consideration for these hearings to get the media engaged. But as the author of In Cold Blood, he testified that confessions were needed sometimes to catch guilty criminals and that Miranda was wrong. It was an interesting perspective.
The Subcommittee also (for the only time) took its show on the road. Miranda hearings were held in Houston, Milwaukee, and other cities to give local police a change to give their views and give other Senators a chance to get attention in their states. None of these hearings led to a constitutional amendment proposal that reached the floor of Congress. Instead, Congress passed the Crime Control Act of 1968.
What are some of the lessons here? One is that constitutional issues can be huge and then disappear. Nobody in politics cares about Miranda now. To be sure, Miranda was narrowed by subsequent decisions. But a more important factor is that police departments and ordinary folks just got used to Miranda warnings over time and concluded that they were not such a big deal. The Supreme Court confirmed this consensus in the Dickerson case in 2000.
Another lesson is that Warren Court decisions were often subjected to careful scrutiny by Congress through the Bayh Subcommittee. Sometimes this review served as a safety valve for criticism of a decision. Sometimes there were reform proposals that led to action short of a constitutional amendment. Sometimes ideas were developed that could be deployed in fresh litigation. The Bayh Subcommittee was in dialogue with the Warren Court on other issues such as school prayer and legislative reapportionment. I’ll elaborate on this in another post, as it will probably be a theme of my book.
Finally, maybe Congress should hold more hearings outside of Washington. Show the flag, you might say.
Posted by Gerard Magliocca on July 7, 2025 at 07:59 AM